Legal Terminology and Concepts: Doctrine Language, Burdens, and Precision
Legal Terminology and Concepts is the vocabulary backbone of the CLE Entrance Exam. The exam does not test Latin for its own sake; it tests whether you can place a term in the procedural moment where it does work - a motion, a holding, a burden, a defense - and distinguish words that sound interchangeable but carry different consequences. Expect definition-in-context items, short scenarios asking which doctrine controls, and paired concepts where only one answer is technically correct.
Doctrine words that carry consequences
- Holding vs. dictum. The holding answers the question necessary to the judgment. Everything else is obiter dictum: persuasive at most, never binding precedent, even from the same court.
- Stare decisis binds a court to controlling precedent from a higher court in the same jurisdiction. A co-equal court in another jurisdiction is persuasive only.
- Res judicata (claim preclusion) bars a second suit on the same claim between the same parties. Collateral estoppel (issue preclusion) bars relitigating an issue actually litigated and necessarily decided.
- Prima facie means sufficient on its face if unrebutted, not probably true. Sua sponte means on the court's own motion. De novo means without deference, the standard for questions of law on appeal.
Burdens and standards
The burden of production is the duty to come forward with enough evidence to put an issue before the factfinder; the burden of persuasion is the duty to convince it. Criminal cases require proof beyond a reasonable doubt. Most civil cases require a preponderance of the evidence. A middle tier, clear and convincing evidence, governs fraud, termination of parental rights, and similar allegations.
Worked example
A trial judge resolving a contract dispute writes: the parties' conduct waived the notice term, and were the court to reach the issue it would likely hold that email satisfies the clause. Asked whether the email statement binds a later court in the same jurisdiction, the answer is no. The judgment rested on waiver, so the notice discussion was unnecessary to the outcome and is dictum. A later court may treat it as persuasive, particularly from the same bench, but it is not controlling.
Traps that cost marks
Candidates routinely label every judicial comment a holding; only the necessary ground is. They also merge res judicata with collateral estoppel, treat clear and convincing as a criminal standard, assume defendant always means criminal defendant, and forget that jurisdiction over the subject matter cannot be waived or manufactured by agreement.